The attached document replaces the document previously issued with the above code on 10 December 2024.

The second party attached to U2024/8802 has now been corrected to Mr 'Weichen' Tao.

[2024] FWC 3446

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Applications for an unfair dismissal remedy - jurisdictional objections - minimum employment period and small business fair dismissal code

• [1] Mr Weichen Tao (Weichen) and Mr Weihong Tao (Weihong) (the Applicants) are brothers and were, until 12 July 2024, employees of Lu & Tao Pty Ltd (L&T/the Respondent) which operates a chicken shop in Yarrawonga, Darwin trading as One Waffle + Two Peck Crispy Chicken. Each of the Applicants own 20% of L&T.

• [2] On 21 July both Weichen and Weihong filed applications pursuant to s.394 of the Fair Work Act 2009 (the FW Act) seeking unfair dismissal remedies against L&T.

• [3] On 13 August 2024 L&T filed an employer response setting out two jurisdictional objections to the Applicants' claims.

• [4] Jurisdictional Hearings were scheduled in each of these matters on 30 October 2024. However, the Hearings were unable to proceed due to the non-attendance of a translator. In the circumstances, and given the substantial written materials filed, the parties agreed for the matter to be determined on the papers.

• [5] The parties were given an additional opportunity to file any further written materials by 6 November 2024.

• [6] On the basis that the evidence and submissions for both matters was the same/or similar, I have decided to issue a joint decision.

• [7] The Respondent contended that neither Applicant had reached the minimum employment period required to bring their unfair dismissal applications. The Respondent argued that L&T is a small business within the definition of s.23 of the FW Act, being a business of less than 15 employees. The Applicants conceded that L&T is a small business.

• [8] LS operates another chicken shop, also branded as One Waffle + Two Peck Crispy Chicken in Casuarina, Darwin. Both Weichen and Weihong worked at the Casuarina location before their employment at Yarrawonga.

• [9] The Applicants contended that LS and L&T are associated entities within the meanings provided by the FW Act and the Corporations Act 2001 (Cth) (the CA) and, as such, the relevant length of service is the combined employment with both entities. The Respondent did not agree with this contention.

• [10] Further, the Respondent relied on the applicability of, and the compliance with, the Small Business Fair Dismissal Code (the Code). Particularly, the Respondent asserted that both Applicants engaged in conduct "sufficiently serious to justify immediate dismissal".

• [11] The Respondent relied on two purported actions of each Applicant; an unauthorised closure of the Yarrawonga store on 11 July 2024 and an alleged theft of cash from the Yarrawonga store.

What is the minimum employment period that applies?

• [12] The FW Act provisions relevant to determining the applicable minimum employment period are as follows:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(b) if the employer is a small business employer - one year ending at that time"

• [13] Section 23 of the FW Act defines a 'small business employer':

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated."

• [14] The Respondent maintained, and Weichen conceded, that L&T has less than 15 employees. Weichen's statement also confirmed that the total number of employees across L&T and LS has not exceeded 15 at any time.

• [15] Accordingly, I am satisfied L&T was a small business for the purposes of s.23 of the FW Act at the time of the Applicants' dismissals.

• [16] Therefore, the minimum employment period applicable in these matters is 12 months.

Did the Applicants meet the Minimum Employment Period?

There is no dispute between the parties that the employment commenced at Lu & Tao Pty Ltd on 25 July 2023.

There is no dispute between the parties that the employment was terminated on 12 July 2024.

The obvious corollary being that the employment period was no (sic) equal to the minimum 12 month period required under the Code.

See ASIC certificate attached. The company search conducted on 5 September 2024 clearly shows that Lu & Tao Pty Ltd was not registered until 14 July 2023 so therefore the business has only been trading since 25 July 2023 (the first date of the applicant's employment period). Therefore, even if there was a disagreement between the parties as to the above dates the reality is that he could not have be employed by Lu & Tao Pty Ltd for a period in excess of 12 months because the entity did not exist at the time."

• [18] In any event, the Applicants agreed that their employment with L&T commenced on 25 July 2023.

• [19] In those circumstances, having been dismissed on 12 July 2024 the Applicants' claims cannot succeed unless they establish that their earlier service with LS counts towards the minimum employment period.

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee's period of employment with the new employer."

• [21] The Applicants submitted that LS and L&T are associated entities pursuant to s384(2)(b) of the FW Act.

Associated Entities - the relevant principles

""associated entity" has the meaning given by section 50AAA of the Corporations Act 2001."

• [23] The CA defines 'Associated entities' in the following manner:

(1) One entity (the associate) is an associated entity of another entity (the principal) if subsection (2), (3), (4), (5), (6) or (7) is satisfied.

(2) This subsection is satisfied if the associate and the principal are related bodies corporate.

(3) This subsection is satisfied if the principal controls the associate.

(b) the operations, resources or affairs of the principal are material to the associate.

(a) the associate has a qualifying investment (see subsection (8)) in the principal; and

(b) the associate has significant influence over the principal; and

(a) the principal has a qualifying investment (see subsection (8)) in the associate; and

(b) the principal has significant influence over the associate; and

(a) an entity (the third entity) controls both the principal and the associate; and

(b) the operations, resources or affairs of the principal and the associate are both material to the third entity.

(8) For the purposes of this section, one entity (the first entity) has a qualifying investment in another entity (the second entity) if the first entity:

(a) has an asset that is an investment in the second entity; or

(b) has an asset that is the beneficial interest in an investment in the second entity and has control over that asset."

• [24] Section 50AA of the CA defines 'control' for the purposes of s.50AAA:

(1) For the purposes of this Act, an entity controls a second entity if the first entity has the capacity to determine the outcome of decisions about the second entity's financial and operating policies.

(2) In determining whether the first entity has this capacity:

(a) the practical influence the first entity can exert (rather than the rights it can enforce) is the issue to be considered; and

(b) any practice or pattern of behaviour affecting the second entity's financial or operating policies is to be taken into account (even if it involves a breach of an agreement or a breach of trust).

(3) The first entity does not control the second entity merely because the first entity and a third entity jointly have the capacity to determine the outcome of decisions about the second entity's financial and operating policies.

(a) has the capacity to influence decisions about the second entity's financial and operating policies; and

(b) is under a legal obligation to exercise that capacity for the benefit of someone other than the first entity's members;

the first entity is taken not to control the second entity."

The Applicants' Evidence on the Relationship Between L&T and LS

• [25] The Applicants have provided a range of evidence to support their assertion of a relationship between L&T and LS. That evidence falls into two categories: structural and operational.

• [26] The Applicants have relied on ASIC "Current Company Extract" documents for both L&T and LS.

• [27] Those extracts set out the following:

a) Weibai Lu is the sole director of both L&T and LS;

b) Weibai Lu is the Secretary of both L&T and LS;

c) All shares in LS are beneficially held by Jiayao Lin;

d) Sixty percent of shares in L&T are beneficially held by Jiayao Lin

e) Twenty percent of shares in L&T are beneficially held by each of the respective Applicants.

• [28] The Applicants have tendered four WeChat messages from a group conversation entitled "Lu & Tao", purportedly being messages between Jiayao Lin and the Applicants. Those messages are dated between 26 October 2023 and 18 April 2024, and have been translated from Mandarin by the Applicants as follows:

Jiayao(Dorris) Lin: Can I borrow Anita to cover a shift at Cas next Friday?

Jiayao(Dorris) Lin: I would like to borrow Anita for one or two days to held out at the Cas(Casuarina) shop.

Weibai Lu: Chen, do you urgently need Anita today? If you don't need, can I borrow her for a day.

Youyi(employee) suddenly had a fever, and I have an appointment to pick up goods today.

Jiayao(Dorris) Lin: Chen, can we borrow Anita(employee) for next Saturday?

• [29] These translations as provided by the Applicants were unchallenged by the Respondent. The messages satisfy me that staff were, with some regularity, shared between the Casuarina and Yarrawonga stores.

• [30] The Applicants also relied on a further set of five WeChat messages from the same group conversation. Those messages purport to set out requests for, and agreements to, share inventory between the Casuarina and Yarrawonga stores. Those messages have also been translated from Mandarin by the Applicants as follows:

@Weibai Lu tally up the amount of chicken we've taken from Gateway, and I'll transfer the payment to them.

I just picked up a bottle of teriyaki sauce and a pack of chili powder from Cas.

Gateway took 96.3 kg of chicken nuggets from Cas, net weight.

Go to Cas and pick up a box of Nutella. Let me know once you've got it. Nutella takes some time to order, and I forgot to take it today.

Weibai Lu: Can you borrow me a box of chicken skin? We're sold out here."

• [31] These translations as provided by the Applicants were also unchallenged by the Respondent.

• [32] Finally, the Applicants relied on a social media post from "One Waffle + Two Peck Cris..." of 9 June 2024 which lists the opening hours of both locations jointly in one graphic.

• [33] The statements of Weihong and Weichen both asserted that the stores "consistently shared goods, employees and equipment".

• [34] Taken together, I am satisfied that the Applicants' materials demonstrate a consistent operational relationship between the two stores. The Respondent's materials did not challenge this assertion.

• [35] On 12 July the solicitor for the Respondent wrote to each Applicant in identical terms as follows:

We are instructed that there is a dispute that has arisen between the parties.

We reiterate that Mr Lu is the sole officeholder of the company, and that Mr Lu alone is responsible for all managerial decision making. As a shareholder you have no management rights or authority to make decisions in relation to the running of the business on a day-to-day basis.

We understand that you have been working on a casual basis with the business. We advise that your casual services are no longer required. Our client will take necessary steps to remove your access to company assets and IT systems as of today's date.

There are a number of ancillary matters that have come to the attention of our client that need to be progressed. Our client is extremely concerned that no cash sales for the month of June have been banked and acquitted as required. These funds amount to some $9000. The absence of these deposits suggest there has been a theft. That matter will be referred to the police for investigation.

We understand that you are interested in receiving the current financials of the company. Once the end of financial year reports are to hand they will be made available to you.

Due to the provocative nature of your recent communication our client no longer wishes to communicate with you directly. Please direct any future correspondence between yourself and our client to our office"

• [36] Based on the evidence above, I am satisfied that the operational relationship identified above establishes that, particularly where there is a common sole director and a common majority shareholder, "the first entity has the capacity to determine the outcome of decisions about the second entity's financial and operating policies."

• [37] I am further satisfied that the capacity to influence those policies is identified by the operational evidence of the Applicants going to the "practice[s] [and] pattern[s] of behaviour" of LS and L&T.

a) for the purposes of s.50AA(1) of the CA, L&T is controlled by LS; and

b) pursuant to s.50AAA of the CA, L&T and LS are associated entities.

• [39] As a result of the findings above, it follows that the Applicants' prior employment with LS is to be included in the calculation of whether the Applicants have met the minimum employment period in accordance with ss.383 and 384 of the FW Act.

• [40] The evidence of Weichen was that he commenced work for LS in the Casuarina store on 18 April 2022 and ceased employment with LS on 21 July 2023. Weichen then commenced work for L&T in the Yarrawonga store on its opening day being 25 July 2023.

• [41] The evidence of Weihong was that he commenced work for LS in the Casuarina store on 23 February 2022 and ceased employment with LS on 13 July 2023. Weihong then commenced work for L&T in the Yarrawonga store on 25 July 2023.

• [42] The Applicants' evidence as to their respective dates of employment with LS was not challenged by the Respondent.

• [43] I find that the Applicants were employed for more than one year with LS before their transfer to L&T.

• [44] I note for completeness that the period between cessation of employment with LS and commencement of employment with L&T was a matter of days in each instance and well within the three months window set in s.22(7)(a)(i) of the FW Act.

• [45] Having found that the Applicants' previous employment is to be counted in determining their continuous service as at the date of termination and having found that their previous employment was in excess of one year, I find that both Applicants have satisfied the minimum employment period in s.383(b) of the FW Act.

The Small Business Fair Dismissal Code Objection

• [46] Where a dismissal complies with the Code, the Act deems the dismissal to be fair, thereby operating as a jurisdictional bar to the Commission from further dealing with the matter.

• [47] The Respondent submitted that it complied with the Code in respect of each of the Applicants and, on that basis, the dismissals were fair.

• [48] The relevant provision of the FW Act states that:

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal."

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements."

• [50] The leading Full Bench authority on the application of the Code to summary dismissal is Pinawin T/A RoseVi.Hair.Face.Body v Domingo [2012] FWAFB 1359 ('Pinawin'). There the Full Bench said:

"[29] We believe that the approach and observations in these two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned."

• [51] The Full Bench went on at [38] to say:

"[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee..."

• [52] Sams DP in Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser [2018] FWC 2648 endorsed the principles in Pinawin as follows:

"[T]he Commission is not required to find that serious misconduct occurred, or that allegations of serious misconduct against the dismissed employee had been proven. Under the Code, the tests are only that:

• the employer held a reasonable belief that the employee's conduct was sufficiently serious to justify immediate dismissal; and
• that belief was based on reasonable grounds, after a reasonable investigation"

• [53] On 12 July, the Respondent wrote to each Applicant in identical terms, as identified in paragraph [35] above.

• [54] I note that Weihong denied having received this letter. Weichen in his statement made no reference to the letter.

• [55] I note that the correspondence was issued on 12 October, the day following the conduct now relied upon by the Respondent to terminate the Applicants. There was no effort either prior to the correspondence, or within it, to put the allegations to the Applicants. In order to satisfy the obiter in Pinawin, a discission between the Respondent and the Applicants was an essential requirement of any investigation.

• [56] Further, whilst the correspondence purports to terminate the Applicants it draws no connection between the conduct now relied upon and the terminations. Moreover, what is now said to be serious misconduct and the sole motivation for the termination is referred to under the banner of "a number of ancillary matters" in the correspondence.

• [57] The Respondent's submissions (identical in respect of each Applicant) under the headings "Serious Misconduct: Legal Justification for Summary Dismissal" and "Actions Constituting Serious Misconduct" provided the following:

"Unauthorised Store Closure: On 11 July, 2024 the Applicant closed the store and told other staff "they don't need to come to work" causing operational disruption and financial loss."

• [58] It is unclear to which Applicant the actions or the words are attributed. Surprisingly, the Director of the Respondent has not provided any evidence in either matter.

• [59] The Respondent relied on a number of photographs of a notice posted at the store which appears closed, and on a text message from the manager of the shopping centre where the store is located inquiring whether they were aware the store was closed.

• [60] The Respondent further relied on an invoice from a local locksmith dated 11 July 2024 itemised as "Rekeyed x2 front door locks".

• [61] The Respondent did not provide evidence of any inquiries or investigation made by it prior to the issuing of the Termination Letter. Even if the Respondent had made such inquiries, I am not satisfied that the conduct was capable of justifying the Respondent reaching a 'reasonable belief' that summary dismissal was an appropriate outcome.

• [62] I note the definition of serious misconduct in the Fair Work Regulations 2009 at regulation 1.07:

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For sub regulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business.

(3) For sub regulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee's employment, engaging in:

(b) the employee being intoxicated at work; (c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment."

• [63] I find that the Yarrawonga store closure does not constitute serious misconduct. Any number of inquiries could have been made by the Respondent, but were not undertaken. Further, I am satisfied that, given the operational relationship I have found above in respect of the two stores, I am satisfied that the Respondent could have arranged alternate staff at short notice to overcome any issues associated with the reputation, viability or profitability of the business. However, it failed to undertake this action.

• [64] For the reasons stated above, I find that the Respondent did not comply with the Code in respect of the 'shop closure' allegations.

• [65] The Respondent's submissions again under the headings "Serious Misconduct: Legal Justification for Summary Dismissal" and "Actions Constituting Serious Misconduct" described the second ground relied upon for the dismissals as follows:

"Missing Cash: After regaining access to the store, no cash was found despite POS system records showing cash income during the time the applicant was in control."

• [66] The Respondent's submissions made reference to 'Supporting Evidence' in these terms:

1. Police Report: Filed after discovering the missing cash. P24210665 reference for theft of money.
   1. POS System Records: Showing cash income from 26/06/2024-11/07/2024 cash total $3676.59 was missing, that period the cash was not remitted.
   2. Communication Records: After letter sent communicating dismissal and raising theft there was no response. (letter of 12 July 2024 attached)
   3. Locksmith Invoice: Showing that the employer had no access to the store and had to hire a locksmith to re-enter"

• [67] I note again that an identical submission was made in respect of each application.

• [68] The Police Report referred to by the Respondent takes the form of an email acknowledgment in which the body of the Report is contained and was received by the Respondent at 1:09 p.m. on 17 July 2024. The Report gives the date of the 'incident' as 11 July 2024 and the location of the incident as the Yarrawonga store.

• [69] Under the heading 'Please enter your report here', it provided:

"Last Thursday, we received a phone call from the shopping centre manager at 5pm informing us that our store had been closed down. As the owners, we were unaware of this closure. Upon arriving at the store, we found that the cash in the till was around $4000 short compared to what the POS system indicated. Additionally, the key to the safe box was missing.

The discrepancy in the till amount was discovered when we counted the money and compared it to the POS system records. The safe box key was also taken during this incident. The only employee working on that say was Weichen Tao.

We have several pieces of evidence that may assist in the investigation. CCTC footage from the shopping centre is available for review. We also have POS system records showing the cash discrepancy and the statements from the shopping centre manager regarding the unauthorized (sic) disclosure."

• [70] In the section asking "How many offenders?" the Report indicated "1" and identified Weichen.

• [71] The same Police Report was tendered in each application without explanation.

• [72] Following the decision in Pinawin, I must consider whether, at the time of the dismissal, the Respondent had a 'genuine belief' that the conduct of each of the Applicant's justified summary dismissal.

"For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report."

• [74] As identified above, the 'Police Report' was only made in respect of one Applicant, Weichen, however, the allegation was maintained against both Applicants.

• [75] In relation to Weihong, no allegations of serious misconduct have been reported to the Police. Therefore, it follows that Weihong has not been a participant in any alleged theft. As a result, I am satisfied and find that the Code has not been satisfied in relation to his termination.

• [76] In relation to Weichen, there is no evidence of any investigation that was conducted by the Respondent in relation to the alleged missing funds. There have been no inquiries or questions made of Weichen by the Respondent in ascertaining whether he had any knowledge of any alleged missing money or its location, or in fact whether any money was actually missing. Without this limited investigation, it is not possible for the Respondent to have a reasonable ground to make a Report to the Police. I further note that the Police have not contacted Weichen in relation to this Report by the Respondent.

• [77] For the reasons stated above, I find that the Respondent failed to comply with the Code in dismissing the Applicants.

• [78] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

• [79] As to the minimum employment period jurisdictional objection, I have previously found that:

• L&T is a small business employer for the purposes of the FW Act;
• L&T and LS are associated entities; and
• The Applicants have both met the minimum employment period required to bring a s.394 unfair dismissal application.

• [80] As to the small business fair dismissal code jurisdictional objection, I have found that the Respondent failed to comply with the Code in dismissing the Applicants.

• [81] Therefore, the Respondent's jurisdictional objections are dismissed.

• [83] A Directions Conference will be scheduled for programming the substantive matters, and will be notified to the parties in due course.

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